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TORTS Introduction Double tested Essays Elements Broad Principles Multiple Choice Nit-picky details Intentional Torts General These are heavily tested on the bar. Especially on multiple choice General Proposition No Incapacity Defenses. Individuals who lack legal capacity in other branches of the law are able to commit intentional torts and should be held liable. Who lacks capacity? Insane people, drunk/drugged people, children. Intent is Always an Element. For all these torts, proving intent is an element. Transferred Intent. If the person intends to commit any intentional tort against any victim, that defendant will be liable even though a different tort results or a different victim is impacted. This is a legal fiction. We call it intent, but oftentimes this is simply inaccurate. Roadmap Tort Testable elements Traditional Exam Tricks Battery Elements (1) Defendant must commit a harmful or offensive contact. Harmful. Very rarely is there is a question about whether the contact is harmful. Test: Contact that impairs the body (Restatement definition). It makes you bleed, breaks a bone, etc. Offensive. More commonly tested on the exam. Test: To determine whether contact is offensive, you must decide whether the contact violates a reasonable sense of personal dignity. That is, ask whether the contact would be unpermitted by a normal person. This test means that we do not honor eccentricities. This is an objective test. Examples Groping; offensively touching a person’s hair, etc. (2) The contact must be with the plaintiff’s person. Test: plaintiff’s person includes anything that the plaintiff is holding or touching. Plaintiff is carrying a purse, you touch the purse, that is against the plaintiff’s person. The object must be connected to the person. If you touch someone’s prosthetic leg while they are wearing it: battery. If you touch it when they are not wearing it (it’s sitting on the table): no battery. Don’t need instantaneous touching. Poisoning is a battery. Assault 2 Elements (1) Plaintiff must place the plaintiff in apprehension, (2) of an immediate battery. Apprehension. In every day speech, apprehensive means fear. But in this case, the definition of apprehension is knowledge. The plaintiff does not have to have fear of his person; even if a small guy threatens a battery on a big guy, and there is no way that he would be afraid, you can still have an assault. Unloaded Gun Problem. A battery is threatened by the defendant, but he can’t actually pull it off. E.g., threatening to shoot someone with a gun that has no bullets. If the plaintiff knows that that the gun is unloaded, or that it is a bluff, then there is no assault. If the plaintiff knows that there are bullets, then he can recover. For a plaintiff who is unsure whether there are bullets in the gun, usually is allowed to recover. Apparent Ability. Some courts say that apparent ability is sufficient to create apprehension of a battery. Immediate Battery. Words Alone Lack Immediacy. Pure verbal threat unaccompanied by any conduct is not enough to make out an assault. Even if the words make reference to immediacy, there has to be conduct. No assault if: I say that I’m going to punch you in 15 seconds. Usually the conduct is having a weapon. But other menacing gesture. Words Can Negate Immediacy. Even if there is threatening conduct, the words might cancel it out. When can words negate? Words are Conditional. If I shake my fist at you and say, “if you weren’t my best friend, I’d punch you.” No assault. Words Promise Action In the Future. I shake my fist and say, “I will punch you in the face tomorrow.” No assault. False Imprisonment. 2 Elements (1) Defendant must commit an act of restraint. (2) Plaintiff must be confined in a bounded area. Element Description (1) Defendant must commit an act of restraint. Threats Are Sufficient. A stereotypical act of restraint is physical restraint, but those are not required. If you threatened to keep my locked up, that is enough. Example: If I have your purse and say that you can’t leave or I won’t give you your purse, and you need something from your purse so you don’t leave, there is a tort. Omission or failure to act by defendant can be an act of restraint if the defendant had a preexisting duty. Example: disabled person on an airplane, the plane lands and the crew just leaves her. There is a tort, and the act of restraint is their failure to help her, given that they had a preexisting duty. Act of restraint counts if the plaintiff knows of it at the time, or suffers some harm as a result. If you are completely unaware that you were restrained, then there is no tort. Example: I lock the door of your room while you are asleep, then unlock it before you wake up, no tort. (2) Plaintiff must be confined in a bounded area. An area is not considered bounded if there is a reasonable means of escape that the plaintiff can reasonable discover. What is interesting about this is the word “reasonable.” On the bar, there might be a situation wherein a person is restrained but there is a way out, but the way out is dangerous, disgusting, or embarrassing, then it is not reasonable. Example: no “reasonable” means of escape if you have to crawl thru a rat-infested sewer pipe. Example: it is a confined area even though you are locked in a library and the means of escape is pulling out the volume of Great Expectations from the wall, because no way of knowing about the means of escape. Intentional Infliction of Emotional Distress Intent NOT required. Unlike other intentional torts, you do not need to prove that the plaintiff acted with intent, it is sufficient to prove reckless conduct. 2 Elements (1) Defendant must engage in outrageous conduct (2) Plaintiff must suffer severe emotional distress Element Explanation (1) Defendant must engage in outrageous conduct The “outrageous conduct” element makes this tort different than others. Most intentional torts forbid a consequence, but this one only forbids a consequence that is effectuated thru a forbidden means (“outrageous” conduct). Outrageous. Conduct is outrageous if it exceeds all bounds of decency tolerated in a civilized society. 2 Negative Rules: It is not outrageous to simply insult someone. Insults alone are not outrageous. If someone is exercising 1st Amendment rights (engaging in protected speech on a matter of public debate), that is not outrageous. Snyder v. Phelps. There is no clear indicator that makes conduct outrageous. But there are some indicators of outrageousness: Conduct is continuous. If a defendant is a common carrier (transportation company) or an innkeeper (hotel) it is easier to label conduct outrageous. Historically, these companies had an increased duty of courtesy. The plaintiff is a member of a fragile class of persons. Little children, elderly, pregnant women It is always outrageous to target someone’s emotional weak spot; it is outrageous to exploit a plaintiff’s known sensitivities. If I have an eccentricity (phobia of snakes), and you know about it and play a practical joke by putting a rubber snake in my office, then your conduct is outrageous. (2) Plaintiff must suffer severe emotional distress There is no specific type of evidence that must be offered to prove severe emotional distress. Don’t have to provide that plaintiff suffered physical injury, or that he missed days of work, or that he had to visit a psychiatrist or other doctor, etc. You can use these things, but don’t have to. Test Trick: the way that they test this element (which is pretty squishy), is that they negate the element in the body of the question. E.g., there will be some long fact pattern and the conduct is totally outrageous but they say that the plaintiff was “mildly annoyed” or “briefly distracted.” No tort. Trespass to Land 2 Elements (1) Defendant must commit a physical invasion of the plaintiff’s property (2) The Plaintiff must be the possessor of the land. Element Description (1) Defendant must commit a physical invasion of the plaintiff’s property 2 ways of meeting the physical invasion element: To physically go on the property. The defendant need not have knowledge that he crossed a boundary line. The “intent” is that he got to the possessed land intentionally; it does not relate to the fact that he intentionally crossed a boundary line. If you walk down someone’s street and have a heart attack and fall on someone’s lawn, that is not intentional. Defendant throws something onto the land If you throw a rock through a window, that is trespass to land. If you throw a rock on the lawn, then there is a trespass to land but can only get nominal damages. Projecting intangible noxious forces is not a trespass. The invasion must be a physical invasion. If you shine floodlights (sight), or play loud music (sound), or have something smelly that wafts over to neighbor’s lawn, (smell) there is no physical invasion and thus no trespass. Physical invasion of air or subsurface is a physical invasion so long it is as a reasonable distance. (2) The Plaintiff must be the possessor of the land. Plaintiff does not have to own the land; in fact, the owner will not have a claim if he is not in possession. Trespass to Chattels & Conversion These deal with the exact same subject matter. Intentional interference with plaintiff’s personal property. Personal Property – all your stuff; everything you own except land and buildings (vehicles, electronics, etc.). Interference Deliberately Damage Your Property. Vandalism Depriving You of Possession (Stealing). Theft Difference between them: the degree of interference. If interference is minor, then proper tort is trespass to chattels. If interfere is significant, then proper tort is conversion. Importance of Distinction is the remedy In conversion, the plaintiff is entitled to recover the full value of the asset. This is why sometimes it is said that conversion is a forced sale. Conversion embodies the “law of the souvenir shop.” You break it, you buy it. Affirmative Defenses There are three: Consent Consent Defense to all 7 intentional torts First question: did the plaintiff have legal capacity? Only a person with legal capacity can give consent. This rule is the opposite of the rule for who can be held liable for an intentional tort. Children to do not lack the capacity to consent to all things. Children can consent to age-appropriate behavior. Can consent to get into a wrestling match, can give consent to play with each other’s toys, etc. As children get older and older, the range of things they can do is broader. A 16 or 17-year-old can consent to most things that an adult can. 2 types of consent: Express consent. You literally tell someone that he can do something. Exception: express consent is void if obtained through duress or fraud. Fraud does not have to involve an affirmative lie; it can involve a concealment of relevant information. In the case law, this comes up with one-night-stands where one person has an STD. The issue of consent comes up, but batter still lies because the info was concealed. Implied consent Custom or Usage. If Plaintiff goes to a place where certain invasions are routine, the law assumes consent to those invasions. E.g., barber shop. You consent to getting your hair cut, no battery. E.g., sports. When you play football, you consent to getting knocked down. Defendant’s reasonable interpretation of plaintiff’s objective conduct. We’re all allowed to read the situation and make reasonable inferences. It is sort of like body-language consent. The test is reasonableness; it does not countenance date rape or anything like it. All consent has a scope; if the defendant exceeds the scope, then he is liable for a tort. E.g., not ok for a doctor to operate on a completely different part of the body. Protected Privileges Three of Them Self defense Defense of others Defense of property Availability of these privileges turns on two tests: Timing. A defendant will only be able to invoke a privilege if the defendant is responding to a threat that is immanent or in progress. Not allowed to use these privileges that are going to happen in the future, or to something that already happened in the past. No revenge, no retaliation. Accuracy. A defendant will only have a protective privilege is he has a reasonable belief that the threat is genuine. A reasonable mistake does not defeat the privilege Defendant may only use the amount of force necessary to respond to the threat involved. If you use excessive force, that is a tort. It is a rule of proportionality; a rule of necessity. If you are threatened with deadly force, you can respond with deadly force. But if we are dealing with defense of property, deadly force is never allowed. You cannot use deadly mechanical devices to protect your property. Necessity Doctrines Only apply to the property torts (trespass to land, trespass to chattels, or conversion). There are two doctrines: Public Necessity. When a defendant invades the plaintiff’s property in an emergency to protect to the community as a whole, or a significant group of people. Usually this is some sort of natural catastrophe, it could also be something like a crazed gunman. Then, a heroic altruistic figure comes and uses a piece of someone else’s property to avert the disaster. Absolute defense; there is no liability at all. Policy: we don’t want the heroic individual to hesitate; also, property can be insured so as to protect against this sort of situation. Private Necessity. Defendant invades plaintiff’s property in an emergency to protect an interest of his own. That interest can be the defendant’s own physical safety, or a piece of his property. There are three interrelated legal consequences: (1) The defendant remains liable for actual damage done to the property. Remain liable for compensatory damages. (2) The defendant has no liability for nominal or punitive damages. (3) As long as emergency continues, the plaintiff property owner cannot throw the defendant off his land. The defendant has a right to stay on the property so long as the emergency continues. That is, you have a right of sanctuary. Defamation 3 elements (1) Defendant must make a defamatory statement that specifically identifies the plaintiff (2) Defendant must publish that statement. (3) Plaintiff may have to prove special damages Element Explanation (1) Defendant must make a defamatory statement that specifically identifies the plaintiff Defamatory Statement. If it tends to adversely affect reputation; if it tends to cast a negative light on reputation. Usually this element is not tested on the bar. But there are a few minor rules: Name-calling is not defamatory. Saying that someone is a son of a bitch is not defamatory. Generally, you need a statement that is a representation of fact; it must be a factual claim. E.g., John is sexually abusing the children at the day care center that he runs. Statement cast in the form of an opinion can also be considered defamatory if it implies the possession of a factual basis. If a reasonable person would interpret it to be a veiled representation of fact. Pure statement of subjective opinion is not defamatory (e.g., restaurant reviewer) Identify the Plaintiff. Plaintiff does not have to be identified by name; can be identified by other identifying information (e.g., by position) Groups of People. The usual distinction is between a small group and a large group. If the statement references a small group, every member of the group is considered to be “identified.” Living Person. In the US, you can only commit defamation against a living person. The test is alive at the time the statement was made. (2) Defendant must publish that statement. The rule of publication is a de minimus rule; the defendant must share the statement with 1 person who is not the plaintiff. Naturally, the more people that the defendant tells, the more damage to reputation that will ensue, and therefore the plaintiff can seek more damages. But in order to have a valid claim, you only need 1 other person. Publication doesn’t even have to be deliberate; it can be careless, inadvertent, or negligent. (3) Plaintiff may have to prove special damages To determine whether a plaintiff has to prove damages, we need to know what kind of defamation case we are dealing with. There are sub-categories: Libel. Any form of defamation that is written down or otherwise embodied in some permanent format (film, tape). Libeled plaintiff does not have to prove damages; damages are presumed. Slander. Defamatory statement is oral or spoken. Slander per se. Particular egregious slander. Treated same as libel with regard to damages; does not require proof of damages. Deals with statements in 4 categories (this is a closed list): Statement relating to Plaintiff’s Business or Profession. Statement that Plaintiff Committed Crime of Moral Turpitude. Crimes of moral turpitude: any crime involving thievery or dishonesty; also crimes involving significant violence. Statement Imputing on Chastity to a Woman. Chastity refers to complete abstinence of sexual conduct before marriage. Statement that the Plaintiff suffers from a loathsome disease. Loathsome disease: only 2! Leprosy Venereal disease Slander Not Per Se. Must prove specific economic damages. You are not allowed to rely solely on social harm. Affirmative Defenses Consent Same as above Truth Defendant can always submit evidence that the statement that was made is factual accurate. Defendant bears the burden of proof. Affirmative Privileges 2 Broad Categories Absolute Privileges. These are based on the identity or status of the defendant. Three important ones: Spouses communicating with each other Officers of the three branches of government engaged in official duties. Lawyers and witnesses are considered to be officers of the judicial branch. So a lawyer’s comment in an opening statement cannot be the basis of a defamation lawsuit. Members of the media in reports of public proceedings. Media has absolute privilege in reporting/repeating a defamatory statement if that was made in a public proceeding. Qualified Privilege. Arises based on the reason for the statement. That is, it arises when there is a public interest in encouraging candor. This is a case-by-case test. Here are a few examples: Letters of recommendation or other forms of reference. Reference is only useful if it’s candid. Statements made to the police or investigating officers. Defendant must observe 2 conditions for the privilege to be available: (1) Defendant must speak in good faith; defendant must have a reasonable belief in the truth of the statement. (2) Defendant must confine his statement to relevant matter; if you bring up irrelevancies, then you do not have the privilege as to the irrelevancies. Public Concern Case When a defendant’s alleged defamatory statement relates to a matter of public concern, there are additional requirements before a plaintiff can win a defamation case. Matter of Public Concern: a matter of general interest to the public at large. E.g., a statement that a politician is taking bribes, that an athlete is taking performance-enhancing drugs, etc. If the statement is a matter of public concern, then the plaintiff must show an additional 2 elements: (1) Plaintiff must prove that the statement is false. Note: here, truth is presumed here! (2) Plaintiff must prove fault. Proof that the defendant made the statement not in good faith. Public Figure: Intent or Reckless (e.g., with malice). If the defendant is a public figure like a mayor of professional baseball player, the requirement of fault can only be met with a showing that the defendant knew the statement was false and made it anyway, or was reckless in investigating the truth of the statement. Private Figure: Simple Negligence. If the defendant is a private figure, the plaintiff needs to prove only that the defendant was negligent. Privacy Torts There are 4 mini-torts here. Appropriation To take something that doesn’t belong to you. Definition: When the defendant uses the plaintiff’s name or picture for a commercial advantage. E.g., cereal company puts start athlete on box without asking permission. 2 cautions: Newsworthiness Exception: if a magazine puts a person on the cover for a matter that is newsworthy. Not limited to celebrities. If a person working for an ad agency takes a picture of you and uses your image in advertising, then you have a cause of action. Intrusion Definition: Invasion of the plaintiff’s seclusion in a way that is highly offensive to an average person. E.g., electronic surveillance (intercepting email, voicemail, etc.); to peer into someone’s window. Plaintiff must be in a place where there is a reasonable expectation of privacy for there to be a claim. Clearly have an expectation of privacy in your own home; maybe also in your car with respect to certain things, etc. There is no requirement that the defendant enter onto the plaintiff’s property for there to be an intrusion. E.g., if I have a telescope that I use to spy on a neighbor, that might be enough to trigger this cause of action. False Light Definition: the widespread dissemination of a major falsehood about the plaintiff that would be highly offensive to an average person. The falsehood can be, but need not be, defamatory. This tort overlaps defamation, but it is broader than defamation. Example of non-defamatory statement that is still highly offensive: a mischaracterization of someone’s beliefs. There is no good faith defense here. You speak at your peril. Even if the defendant has every reason to believe the statement, the fact that the statement is wrong is determinative. Disclosure Definition: the widespread disclosure of confidential information about the Plaintiff that would be highly offensive to an average person. This involves truthful information, but it is intimate/sensitive. E.g., circulating medical records or financial data. Newsworthiness Exception: same as above. Facts in question must be truly private/intimate. There has been a popular question on this topic in recent years: the “dual spheres” question. Example: Pete is gay and open to his family and friends, is active in gay politics, etc. But he is not out at work. At a marriage equality protest Pete is there with a sign saying that he is gay; a co-worker sees him with the sign and tells everyone at work. No tort because the information is not really private or confidential. Affirmative Defenses Consent Absolute and Qualified Privileges Defenses to false light and disclosure More Torts There are 5 economic or litigation related torts. This is in the Barbri outline. The torts: Fraud or Deceit Negligent Misrepresentation Inducement of a Breach of Contract Malicious Prosecution Abuse of Process Negligence 4 Elements Duty Breach Causation Factual Proximate Damages Duty Every person in the world is obligated to take risk-reducing precautions as they engage in various daily activities. 2 subsidiary issues: To whom do I owe the duty? Rule: You owe a duty to foreseeable victims of your actions. No duty is owed to unforeseeable victims; thus, unforeseeable victims always lose negligence litigation. Foreseeability Test: if a victim is very far away from you, then you do not owe them a duty (Palsgraff). Exception: rescuers (Wagner). Danger invites rescue. That is, if you do something stupid and someone comes in from far away to help, then you should have foreseen that your stupid action would draw them in (and therefore you owe them a duty of care). How much duty do you owe? Default Rule: you owe the duty that a reasonably prudent person would owe acting under similar circumstances. New Restatement says that you owe reasonable care under all the circumstances. The reasonably prudent person has no physical attributes. Not male/female, not tall/short, not any particular race, etc. Reasonably prudent person has a whole set of behavior characteristics this is like your most persnickety friend, who takes every precaution just in case. When we hold our defendant up against the hypothetical “reasonably prudent person,” we make no allowances for the particularities of the defendant. It is an objective standard. No allowances for developmentally disabled person, or delusional people, etc. Modifications to Reasonably Prudent Person: If the defendant has superior skill or knowledge, the reasonable person is a person with that superior knowledge or skill. ONE OTHER ONE. 6 Special Duty Scenarios Children Standard of Care Mini-Rule: Children under age 5 are in incapable of negligence. Other Rule: Children age 5 and above owe the rest of the world the standard of care of a hypothetical child of the same age, experience, and intelligence acting under similar circumstances. Subjective standard of care. This is virtually the opposite of the default rule; it is lenient and flexible and tends to be pro-defendant. Exception: if a child is engaged in an adult activity, then we do not use the special child standard of care; we use the default standard of care. What is an adult activity? Operating a motorized vehicle. Professional Standard of Care (Malpractice) Who? Could be anyone (accountant, lawyer, etc.). But almost always a health care provider. Rule: Owe must exercise the skill and knowledge normally possessed by members of that profession in good standing in similar communities. Heightened standard Note: the jury will not know what the professional code of behavior is. Plaintiff almost always needs an expert witness. There are some small exceptions. E.g., if you are post-op and have pains in belly and they cut you open and you have a towel in you, it is pretty clear that there was a problem. “In similar communities” Traditional view is that there is differentiation between urban and rural settings (rural is more limited because of resource constraints). So “similar community” refers largely to size. Note, however, in the medical world that rule only applies to primary care physicians. If you are dealing with specialists, then we are agreed that there should be a national standard of care. Premises Liability Litigation Duty of possessor of real estate to protect entrants from hazardous conditions on the property. Definitions: Real Estate – can take many forms. Could be open piece of land, a building, Possessor – often the owner, but not necessarily. If it is a rented property, then the possessor is the tenant. Entrants: Unknown Trespasser: comes onto land without permission, and whose presence the possessor doesn’t know about. Rule no duty of care owed to unknown trespasser. Known or Anticipated Trespasser: comes onto land without permission but possessor is aware of individual’s presence; or someone that the possessor should know about. Possessors should know about trespassers if there have been trespassers in the past. E.g., railroads. Rule: owes a duty to protect only from hazards that meet a 4-part test. The 4-part test: (1) only a duty when the condition is artificial in nature (i.e., constructed by human beings), (2) condition must be highly dangerous (must be something that can kill or maim), (3) condition is unlikely to be discovered by trespasser on his own (concealed), (4) possessor must have prior knowledge of the hazard. Short Rule: Possessors owe a duty to protect only from known, man-made, death traps on the property. Licensee: enters the land with permission, but does not confer economic benefit on the possessor. E.g., social guest, unsolicited people who show up on your doorstep, etc. Rule: owes a duty to a licensee for conditions that meet a 2-part test. The 2-part test: (1) the condition must be concealed, and (2) the possessor must have had prior knowledge. Short Rule: Possessors owe a duty to licensees to protect from all known traps on the property. Invitee: enters with permission, and either confers economic benefit on the possessor or the property is open to the general public. E.g., customer of a business, a place of worship, etc. Rule: owe a duty for conditions that meet at 2-part test. The 2-part test: (1) hazard must be concealed, (2) hazard must be one that the possessor either knew about in advance, or could have discovered through a reasonable inspection (e.g., knew or should have known). Reasonable inspection is the kind that would be done by a reasonably prudent person. Short Rule: possessor owes a duty to protect from all reasonably knowable traps on the property. NOTE: There are some special cases. Firefighter or Police Officer: No recover for hazards that are an inherent risk of the job. Child Trespassers Owed a duty of reasonable prudence under all the circumstances with regard to artificial conditions on the land. Reasonable Prudence: (1) how foreseeable was it that children would trespass in the first place? (owe greater duty if you have something that will attract kids to your property; attractive nuisance); (2) would the child appreciate the duty for himself? (if child would appreciate the duty for himself, then he would be aware of problem and avoid hazard, so you owe less of a duty). Possessor can avoid liability in two ways: (1) Fix the hazard (2) Give a warning NOTE: about half of the States have abolished this entire scheme. Including California. BUT, MUST USE THIS ON THE EXAM. Statutory Standards of Care Scenario: often, litigant will look to a criminal statute that defines the contours of acceptable behavior and try to impute this into negligence situation. I.e., negligence per se Often happens with traffic violations. Story about previous bar exam question about woman smoking pot in apt that had a gas leak, blows up and damages neighbors’ apt. Neighbors want to borrow criminal marijuana statute. Answer: fails because doesn’t meet 2-part test. 2 Prong Test: Plaintiff must how that he is in the class of persons that the statute seeks to protect. Plaintiff must show that the accident that actually occurred is in the class of risks that the statute is trying to prevent. Exceptions (don’t borrow the statute when): If obedience to the statute would have been more dangerous than the violation. If statutory compliance was impossible under the circumstances. Duties to Act Affirmatively There are no duties to act affirmatively. You don’t have to rescue a person in peril. Exceptions: If there is a relationship between the person in peril and the defendant, that will trigger a duty to rescue. Historically, the courts look for a formal relationship (employer/employee, innkeeper/guest). The modern trend is to expand this to informal relationships. If you are at dinner with a friend and he chokes and you know CPR, you have a duty. If the defendant is the one who put the plaintiff is in peril, then the defendant has a duty to rescue. What is the duty to rescue under these exceptions? Reasonable under the circumstances. However, reasonableness never requires the defendant to put his own life at risk. Even if there is no duty to rescue, but the defendant decides to rescue anyway (gratuitous rescuer), then the rescuer can be held liable for acting unreasonably. Many States have changed this rule by statute, by passing Good Samaritan laws. Negligent Infliction of Emotional Distress Scenario: defendant engages in a negligent act, but there is no physical trauma to the plaintiff’s body. Note: you need some sort of antecedent negligence before you reach these special rules. So must do an analysis under one of the previously mentioned standards of care. 3 Scenarios Near Miss Scenario. Plaintiff, although not physically injured by D’s negligence, the P was placed in a zone of physical danger. The distress from the near miss caused subsequent physical manifestations. Subsequent Physical Manifestation heart attack, miscarriage, etc. Modern trend is to relax this requirement. Some courts say that clinical depression is enough. Bystander. Negligent D causes a serious injury to or death of a third person, and this causes distress to the Plaintiff. Conditions for recovery: Plaintiff and injured/dead person are close family members. Plaintiff must be a contemporaneous witness the injury/death. Relationship. Plaintiff and Defendant are in a business relationship, and it is highly foreseeable that negligence by the Defendant will distress the Plaintiff. E.g., false positive for HIV test; customers and funeral parlors. Breach Plaintiff must do 2 things: Identify specific behavior of Defendant that was wrongful. Offer a theory as to why the conduct fell below the standard of care. Res Ipsa Loquitur Doctrine used by a Plaintiff who cannot identify the wrongful conduct of the Defendant because he lacks information. Elements: (1) P must show that the accident is of a type that is normally associated with negligence. Notes: Usually just describe the situation and leave it to the jury; it’s an appeal to common sense. But sometimes can have expert witnesses. (2) P must show that an accident of this type is normally due to negligence of someone in Defendant’s position. Should show that Defendant had control over the instrumentality. Procedure If the Plaintiff can make out these two elements, then he gets to the jury. Res ipsa loquitur substitutes direct evidence of a breach. But the jury can decide either way, it is not bound by the res ipsa doctrine. Causation 2 Types Factual Causation Proximate Causation Factual Causation Definition: Plaintiff must establish a linkage or connection between the breach and the injury suffered. 2 Semantic Issues A defendant is never a factual cause; the breach is a factual cause. Breaches are causes, defendants are not. Do not speak of “the” factual cause, speak of “a” factual cause. Rule: the breach is a cause if but-for the breach, Plaintiff would be healthy today. 2 Special Cases where we don’t use the but-for test. Both involve multiple defendants. Multiple Ds and Merged Causes. Here, we have two or more negligent parties but they are not acting together, their negligence merges together and hurts the Plaintiff. Substantial Factor Test: if each breach could have caused the harm by itself, then each Defendant is liable and the Defendants are jointly liable. Multiples Ds and Unascertainable Cause. Here, it is not possible to know which Defendant caused the injury. Burden Shifting Rule: The burden to proof shifts to the Defendants to exonerate themselves if they can; if they can’t, we hold them jointly liable. Proximate Causation Plaintiff must show that liability is fair on these facts and not unduly attenuated. General Rule: Plaintiff must show that the injury was a foreseeable consequence of the breach. Direct Cause Case. Defendant commits a breach, and the Plaintiff is injured fairly instantaneously. Here, the “attenuated” character of the injury doesn’t have to do with passage of time, but rather with surprising nature of the injury. Rule: If the injury is far-fetched, freakish, or bizarre then it is unforeseeable. Indirect Cause Case. Defendant commits a breach, and then other events happen in the middle, then Plaintiff suffer the full extent of the harm. Liability is likely to be “attenuated” because of the passage of time. 4 Settled Rules: Intervening Medical Negligence. When Defendant injuries Plaintiff, and Plaintiff gets medical treatment that ends up being negligent and suffers enhanced injury. Rule: Defendant is liable for enhanced injury. Intervening Negligent Rescue. Defendant injuries Plaintiff, and an intervening person tries to rescue Plaintiff but in so doing injures Plaintiff further. Rule: Defendant is liable for enhanced injury. Intervening Reaction or Protection Forces. Defendant injures Plaintiff, other people react or act in self-preservation and further injure plaintiff. Rule: Defendant is liable for enhanced injury. Subsequent Disease or Accident. Defendant injures Plaintiff, and because of injury the Plaintiff is injured further at a later date. Rule: Defendant is liable for enhanced injury. Case-by-Case Analysis First, look at the breach and analyze what it is that we are worried about, what sorts of risk does the breach incur. Second, look at the injury suffered by the Plaintiff and assess whether it falls within the scope of the risks of the breach. Damages Eggshell Skull Principle. Once the defendant has met all other elements of negligence, he is liable for all injuries suffered by the Plaintiff even if surprising in scope; take the Plaintiff as you find him. NOT LIMITED TO NEGLIGENCE. It applies to battery, etc. It applies to every cause of action in tort. Affirmative Defenses for Negligence Traditionally there were 2 Contributory Negligence Implied Assumption of the Risk. These two defenses have been abolished in the vast majority of states. But every once and a while, they are tested. Comparative Negligence Defendant can raise the defense of comparative negligence by showing that the Plaintiff failed to exercise proper care for his own safety. Normally, that means that the Plaintiff was not a reasonably prudent person. Also, you must obey statues that are designed to protect you from harm (e.g., don’t jaywalk). Jury will be instructed to weigh the fault of the two parties and to assign each party a percentage of fault. There is no law on how that percentage assignment should be done. Once the jury has performed this task, Plaintiff’s recovery is reduced by Plaintiff’s percentage of fault. Two Versions of Comparative Negligence Pure Comparative Negligence. In this system, we go strictly by the numbers, and the Plaintiff always recovers something, even if he bears the majority of the fault. Absent specific instruction on the bar exam, assume that we are in a pure comparative negligence scheme. Modified or Partial Negligence. In this system, Plaintiff fault under 50% reduces recovery, but Plaintiff fault over 50% is an absolute bar on recovery. Strict Liability Topics Liability for Injuries Caused by Animals Two Types Domesticated Animals. Wild Animals. Domesticated Animals. On the bar, these questions are nearly always dog bites. General Rule: you are not strictly liable for your domesticated animals. Exception: you are liable if you keep a domesticated animal, and you have knowledge of its vicious or dangerous propensities. If the dog has previously bitten someone, then you are assumed to have knowledge of its vicious propensities. Exception to the Exception: there is no strict liability for dog bites, whether you have knowledge or not, for bites to trespassers. Wild Animals. These cases relate to people who keep wild animals. Rule: if you keep a wild animal then you are strictly liable. Exam Tip: the typical question will try and trip you up by listing lots of safety precautions. But this is strict liability so safety precautions don’t matter. Abnormally Dangerous Activities. Rule: A person is strictly liable for any harm caused by an abnormally dangerous activity. An activity is abnormally dangerous if it creates a foreseeable risk of serious harm even when reasonable care is exercised and the activity is not a matter of common practice in the community. (from Rylands case) Examples of Dangerous Activities Blasting; use of highly dangerous toxic and easily dispersed chemical/biological material; nuclear energy or radiation. Defective Products Preliminary Points If someone gets hurt by a dangerous product, he is likely to have a variety of theories (negligence, breach of warranty, strict liability claim). Strict liability is available for all sorts of consumer products (hair dryers, appliances, automobiles), as well as including industrial products). 4 Elements Defendant must be a merchant Product must be defective Must show the product has not been altered since it left the Defendant’s hands. Plaintiff makes foreseeable use of the product at the time of the injury (1) Defendant must be a merchant Merchant is someone who ordinarily deals with goods of this type. Casual sellers (garage sale, eBay, etc.) are not merchants. Service providers often make products available as a collateral part of delivering the service, but they are not considered merchants of those products. Lessors (those who rent products) are considered merchants and can be strictly liable. Every party in the distribution chain is considered a merchant and therefore vulnerable to a strict liability claim. E.g., there is no requirement of privity of contract. (2) Plaintiff must prove that the product is defective This tends to be heavily litigated, but is often stipulated in the question in the bar exam (but in essay question you need to do the analysis). Three Kinds of Product Defects: Manufacturing Defect. Product has manufacturing defect if it differs from all the others that came off the same assembly line in a way that makes it more dangerous than the Plaintiff would normally expect (“consumer expectation test”). Design Defect. Product has a design defect when there is another way that it could have been constructed (hypothetical alternative design – HAD), and the HAD meets three criteria: The HAD posited by the plaintiff must be safer than the version actually marketed. The HAD posited by the plaintiff must be economical. Economical means costs about the same as the version marketed or only a little bit more. The HAD must be practical, which means that it cannot undermine the utility of the product. If there is a government regulation that mandates how a product should be built, failure to conform to the regulation is proof of a defective design. Information Defect. If a product has residual risks that cannot be eliminated by a design change and which are not obvious to the user, that product is defective if it does not contain adequate warning and instruction about those risks. Warning must be adequate. Warning on pg. 4 might not be enough, might need big red sticker at point of operation; might need bilingual written warning, etc. If a product has a design defect, you cannot avoid liability by putting a warning on it (if it’s busted, we want you to fix it, not just put a warning on it). (3) Must show the product has not been altered since it left the Defendant’s hands. This element is presumed to be satisfied if the product moves through ordinary channels of commerce. Only comes into play through secondhand sales, etc. (4) Plaintiff must show that he was making a foreseeable use of the product at the time of the injury. Many misuses of the product are foreseeable (e.g., standing on a chair). Affirmative Defenses Comparative Fault – any misbehavior by the Plaintiff will result in an assignment of percentages and a reduction of recovery. Nuisance This is actually a type of harm. A nuisance is like a broken leg. What kind of harm falls within definition of a nuisance? Rule: interference with Plaintiff’s ability to enjoy real estate to an unreasonable degree. Many of these cases involve inconsistent land use. On the exam they make it very extreme. E.g., Plaintiff decides to open on his property a Sanitarium, other party opens a recording studio for heavy metal. Or smoke-belching factory. Nuisance can be: Intentional Negligent No Fault Balancing. Courts tend to balance the interests; plaintiff’s right to be free from nuisance with defendant’s right to use his land as he choses. It is not a defense that the plaintiff came to the area after the defendant already started to engage in his activity. It is not a defense that you “came to the nuisance.” Grab Bag Topics Vicarious Liability This is predicated upon a relationship. 4 relationships: Employer/Employee Rule: Employer is employee is vicariously liable for torts of employee that are committed within the scope of employment. Scope of Employment: Intentional torts are generally outside the scope of employment, but there are many exceptions wherein intentional torts are within the scope of employment. If the job involves the use of physical force, intentional torts are within the scope of employment. If the job is one that generates animosity or friction (repo man, or debt collector), then there is vicarious liability. Any tort that directly serves the boss’s interests falls within the scope of employment. Hiring Party/Independent Contractor General Rule: No vicarious liability for the torts of independent contractors. Exception: a property possessor is vicariously liable if an independent contractor injures an invitee. Automobile Owner and Driver General Rule: car owner is not vicariously liable for those who borrow the car. Exception: if the driver is doing an errand for the possessor, then the driver is an agent and therefore the possessor is vicariously liable. Parents and Children. Rule: Parents are not vicariously liable for the torts of their kids. Joint Tortfeasor Issues You might be told on the bar exam that the Plaintiff has sued multiple people and won. From who can he recover? The defendants are jointly liable (can get all the money from any of the defendants). What are the defendants’ rights between each other? Rule: the jury assigns percentages as between the defendants, and the defendant who paid the Plaintiff can recover in proportion from the other defendants. Indemnification There are 2 situations: Vicariously liable party can be indemnified by the active tortfeasor. Non-manufacturer in a strict products case can get indemnity from the manufacturer. Loss of Consortium If the victim of any tort is married, the uninjured spouse gets a separate and additional cause of action in his or her own name. Notes This is a derivative cause of action; any defense that can be pled against the injured spouse can be pled against the loss of consortium spouse as well. What do you get? 3 things Money for loss of services (no one to help around the house) Money for loss of society (companionship) Money for loss of sex 26

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